Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-02-17

still have been equally responsible. The
neglect Of which this defendant is alleged
to be guilty is that they did thing either
directly OF through the agency of others
which was dangerous thing TO do; that
they allowed II TO be done, and thereby
made themselves guilty of neglect. When
servant 10 injured by reason of the
neglect of the man who employs him,
then he Is entitled to go before q jury,
and ask that his rights be considered and
that compensation be given him. Mr..
Gray argued that the burden of proof of
negligence rests upon the defendant and
not upon the plaintiff Where building
falls the burden Of the proof Is on the
owner of the ground and the building to
show that it did not fall through any neg
ligence of his. Buildings are made to
stand and not to fall, and when build-
| ing falls IL ia an extraordinary and un-
usual thing, and 1t is presumed to he due
to negligence on the part of the builder
and owner until he proves otherwise.
This case is. therefore. proper case for
| the Jury, SO that the defendant may show,
| If they can, that this injury Ia not due to
their negligence. With regard TO
the voluntary assumption of risk
| by the servant In entering into
the service of his master, Mr.. Gray said
| that one of the risks which he does not
assume is any danger or injury resulting
from the negligence Of his employer.
| The danger from the negligence of his
fellow-servant he does assume, but not
that Of his master. This case really
comes down TO the question as to whether
| the plaintiff Is responsible for his own
injury because of oontributary negli-
gence. Mr.. Gray made the point that the
plaintiff cannot be charged with the
knowledge of his danger, even II he knew
the defects in the building, but yet did
not know that those defects were danger
GUS.
Mr.. Gray spoke up to O'Clock, when
recess was taken until 8 o'clock.
The afternoon session of the superior
court Tuesday was taken up with the
argument on the motion for nonsuit in
the Ferris Giles suit for damages against
the Diamond State Iron Company. Mr..
Gray, who spoke during the morning ses-
sion, concluded his argument for the
plaintiff shortly after O'Clock, and was
followed by George a. Bates, Esq., of
counsel for defence in support of the
motion for nonsuit.
1 Mr.. Bates introduced his remarks by
referring to the gravity Of the case at is
sue. He said 1t is the duty Of the court to
grant nonsuit in proper case as much
as 1t is for the Jury TO render o true YER
dict. There existed comparatively slight
difference between the counsel as to law.
The real difference was as TO the applica-
ton of the facts to we'll settled principles
OF law. The speaker agreed with his oppo-
nent that the law of master and servant
was'not derived from statute but that the
application of juridioal principles rests on
sound reason. The question is not could
the defendant have prevented the injury,
but was he negligent. The burden of
proof as to the masters negligence is on
the plaintiff; if, therefore, the plaintiff
evidence is consistent with either negt-
gence or the want of il on the part of the
defendant the court is not justified in
leaving it to the jury. Three defects
are alleged In rgument-defect in
plan for want of o competent architect,
defects of the wall and the open end. Mr..
Gray receded from this point, and said
that they do not allege in failing to take
skilled advice, but that the defendant did
the thing negligently. As to the want OF
competent architect there is no proof
either that it is customary to employ an
architect for such building, or that Mr..
Jones who drew the plans was not a com.
petent architect. This objection ID
founded on the doctrine of the liability
for negligence of the master in employing
an incompetent fellow-servant. Upon
this point the plaintiff must make proof.
Here he has made no psoof. According
to Rice's testimony he never came in CON
, tact with Jones he didn't know him. Al
, o matter of common sense which COURT
, are presumed to apply to the decision o.
| causes, architects are never necessary fol
, buildings of that character. The very
proof shows this, because the defectl
| alleged are proved mainly, not by archi
ticts but by builders, and of the two
? architects called neither one has eve
| built rolling mill. With the wide ex
r perience to which Mr.. Chandler testified
. | it may be presumed that if he were accus
I toned to have an architect to explain tn
building of rolling mill, he would no
8 have lacked this experience. As to tn
i defects of the plan there is not threat
q of evidence except that connected witt
|. the thinness of the wall. There is NJ
/. pretence that either Mr.. Simpson o
t Mr.. Enos refer to anything else
!. And critical examination of MI
v Chandeliers testimony will show tina
everything that he said in criticism 0
v this building connects itself with the wall
q MIR. Rice's only criticism was that til
n wall was not strong enough. Respectin
70 the open end very little appears in til
% testimony, and the direction as TO thit
Il Mr.. Fouik tated, was the only interior
II ence by the defendant with his work. N
% opinion is given by any witness why th
Z, building fell, nor is there any ground c
e inference exceptthe thinness of the wal
IL All the witnesses located the defect in th
i wall and there is an intimation on th
IL part of some that the end should nc
o have been left open. But the testimon
, on this point is insufficient to found an
It recovery upon IL because of its failure
It give any reason why the end should nc
70 have been left open.
n In touching upon the point of the a
10 legged negligence of the defendant, Nj
1t Bates said there is failure of proc
.s There is no evidence upon which recover
1t could be founded. The company en-
Do ployed competent contractor for eac
ID branch of the work. This is uncha
ss lenged. The evidence shows Simpso
/ to be builder of large experience, whic
Ly fact alone negatives the idea of negl
IN gence, leaving out of the question a
at matters of oontributory negligence. n
le suggestion of danger came from eth,
ID of these contractors on examination I
is the plans. As to the briokwork, all I
Simpsons testimony bearing upon it
" inconsistent with any such suI
in gestion and he expressly disclain
k having had, himself, any idea
I'd danger. Simpson testified to takir
IN memoranda of the dimensions of the We
of as given verbally by Davis; there was l
re interference with the work, exec
b, to exclude any brick that was n
X good; there was no interference at 6
ey after the work got under way. He test
q, fed also that he said the wall looked thi
st and suggested adding four inches. !
Dir did not say anything about danger, u
Nv wall did not suggest any danger to hir
to Foulk testified that the only interferen
At, was in leaving the end open to build
al shed. In answer to the question as
he whether in his opinion the wall was thi'
in enough, Mr.. Enos said, II mentioned
he Mr.. Simpson, think it was to him, M
ID, Davis and Mr.. Jones that thought tn
be ought to run it four inches thicker on q
be inside. When rafters were put on witho
as any vibration they would hold it.
he considered it safe as he left it; never So
of to any one II was dangerous; new
IN tboupht about its falling down.